Case No. IT-05-88-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Jean-Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision of:
23 March
2006

THE PROSECUTOR

v.

VUJADIN POPOVIC
LJUBISA BEARA
DRAGO NIKOLIC
LJUBOMIR BOROVCANIN
ZDRAVKO TOLIMIR
RADIVOJE MILETIC
MILAN GVERO
VINKO PANDUREVIC
MILORAD TRBIC

________________________________________________

DECISION ON JOINT DEFENCE MOTION SEEKING CERTIFICATION OF THE TRIAL CHAMBER’S DECISION ON THE JOINT DEFENCE MOTION SEEKING THE TRIAL CHAMBER TO ORDER THE REGISTRAR TO PROVIDE THE DEFENCE WITH BCS TRANSCRIPTS OF PROCEEDINGS IN TWO PAST CASES BEFORE THE INTERNATIONAL TRIBUNAL

________________________________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Zoran Zivanovic for Vujadin Popovic
John Ostojic for Ljubisa Beara
Jelena Nikolic for Drago Nikolic
Alan Newman and Miodrag Stojanovic for Ljubomir Borovcanin
Natacha Fauveau Ivanovic for Radivoje Miletic
Dragan Krgovic for Milan Gvero
Đorđe Sarapa for Vinko Pandurevic
Colleen Rohan for Milorad Trbic

 

TRIAL CHAMBER II of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal");

BEING SEISED OF the "Joint Defence Motion Seeking Certification of the Trial Chamber’s Decision on Joint Defence Motion Seeking the Trial Chamber to Order the Registrar to Provide the Defence with BCS Transcripts of Proceedings in Two Past Cases Before the International Tribunal", filed on 13 March 2006 ("Joint Motion");

NOTING that in the Trial Chamber’s "Decision on Joint Defence Motion Seeking the Trial Chamber to Order the Registrar to Provide the Defence with BCS Transcripts of Proceedings in Two Past Cases Before the International Tribunal", dated 6 March 2006 ("Impugned Decision"), the Trial Chamber denied the request of the Accused for an electronic, written and searchable BCS version of the transcripts of the proceedings in the cases of The Prosecutor v. Krstic ("Krstic case") and The Prosecutor v. Blagojevic and Jokic ("Blagojevic and Jokic case");

NOTING that in the Impugned Decision the Trial Chamber held, inter alia, that (a) the requirement in Rule 66(A) of the Rules to disclose copies of the supporting material can be satisfied by a disclosure of the specified material in audio format; (b) the objective of Rule 66(A) of Rules to adequately inform the Accused of the nature and cause of the charges against them is met if the material is provided in a language they understand, irrespective of whether it is provided in audio or other format; (c) the Prosecution’s proposal to identify relevant sections in the English transcripts and to provide BCS indexes to the English transcripts should adequately overcome any difficulty caused by the length of the total BCS audio recordings; and, (d) the Accused have not shown that the use of BCS audio recordings would be significantly less efficient than the use of a transcription or that it would infringe upon their right to a fair trial;

NOTING that in its Joint Motion, the Accused submit that the Trial Chamber "committed errors of law which led to an abuse of its discretion in denying the relief sought", namely:

  1. The Trial Chamber erred in its interpretation of Rule 66 of the Rules by holding that the Rule can be satisfied by the disclosure of material in audio format;

  2. The Trial Chamber erred in law by holding that "the objective of Rule 66(A) is to inform the Accused of the nature and the cause of the charges against them…" without recognising the link between the purpose of so informing the Accused and their right to have adequate time and facilities for the preparation of their defence, pursuant to Article 21(4)(b);

  3. The Trial Chamber erred in law by holding that material that falls under Rule 68 of the Rules does not have to be translated into a language that the Accused understand;

  4. The Trial Chamber erred by failing to consider the equality of arms argument made by the Accused;

  5. The Trial Chamber erred in holding that "the Accused have not shown that the proposed use of the BCS audio recordings would be significantly less efficient";

NOTING that the Accused submit that the Impugned Decision raises an issue that would significantly affect the fair and expeditious conduct of the proceedings in that the Impugned Decision infringes the rights of the Accused, will have a significant impact on the ability of the Accused to prepare for trial, and is likely to cause delays in both the preparation of the case for trial, the start of the trial, and the conduct of the proceedings;

CONSIDERING that the English transcripts of the Krstic and Blagojevic and Jokic cases, with which the Accused have been provided, are supplementary to the audio recordings, and that the Accused have adequate access to the material required to enable them to prepare for trial;

RECALLING the Prosecution’s proposal to identify in the English transcripts of the Krstic and Blagojevic and Jokic cases the direct evidence linking the Accused to the crimes charged and to provide BCS indexes to the English transcripts;

REITERATING that it has been clearly established by the Tribunal’s case law that an accused’s rights pursuant to Article 21(4) of the Statute do not include a right to the translation of transcripts of proceedings into BCS, and that disclosure of copies of supporting material in BCS in audio format satisfies the requirements of Rule 66(A) of the Rules and Article 21(4) of the Statute;1

CONSIDERING that the costs and time associated with having the English transcripts translated into BCS would be considerable and would result in an extremely significant delay in proceedings, which would be contrary to the Accuseds’ right to an expeditious trial and would be harmful to the interests of justice;

CONSIDERING, therefore, that the Accused have not shown that the Impugned Decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or that an immediate resolution of the issue by the Appeals Chamber would materially advance proceedings;

FOR THE FOREGOING REASONS

PURSUANT TO Rule 73(B) of the Rules;

HEREBY DENIES certification to appeal the Impugned Decision;

 

Done in English and French, the English version being authoritative.

Dated this 23 day of March 2006
At The Hague
The Netherlands

____________________________
Judge Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. See Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Land˛o, Case No. IT-96-21-T, Decision on Defence Application for Forwarding the Documents in a Language of the Accused, 25 September 1996; Prosecution v. Mladen Naletilic and Vinko Martinovic, Case No. IT-98-34-T, Decision on Defence’s Motion Concerning Translation of All Documents, 18 October 2001; Prosecutor v. Pasko Ljubicic, Case No. IT-00-41-PT, Decision on the Defence Counsel’s Request for Translation of All Documents, 20 November 2002; Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Oral Ruling, T. 4322 – 4324; Prosecutor v. Momcilo Krajisnik, Case No. IT-00-39-T, Oral Ruling, T. 4993 – 4999, 30 July 2004; Prosecutor v. Momcilo Krajisnik, Case No. IT-00-39-T, Oral Ruling, T. 5194 – 5197, 30 September 2004.